Te Rangi (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Special Category (Temporary) (Class TY) visa, subclass 444, held by the applicant. The dispute arose from the Minister's satisfaction that the applicant's presence in Australia posed a risk to the safety of the Australian community or individuals, a ground for cancellation under s 116(1)(e) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) was established, and if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The applicant's conduct, including an incident involving intoxication, physical altercation with security staff, and aggressive behaviour towards police on 13 April 2018, as well as a further incident on 16 December 2018 involving a physical altercation with his brother, damage to a member of the public's vehicle, and aggressive behaviour towards paramedics and police, formed the basis of the delegate's decision.

The Tribunal found that the applicant's conduct did indeed establish the ground for cancellation under s 116(1)(e), as his presence in Australia posed a risk to the health, safety, or good order of the Australian community. However, the Tribunal then considered its discretion regarding cancellation. It weighed factors including the applicant's stated purpose for being in Australia (seeking better employment and financial opportunities), his compliance with visa conditions (none found), the significant hardship that cancellation would cause to his Australian citizen partner and their young daughter, his genuine relationship with his partner, his employer's strong positive testimony regarding his skills and value to the business, and steps he had taken to address alcohol consumption.

Ultimately, the Tribunal concluded that, when considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 444 visa.